Opinion
2017–01277 Ind. No. 1247/16
08-01-2018
The PEOPLE, etc., respondent, v. KAJUAN L. (Anonymous), appellant.
Paul Skip Laisure, New York, N.Y. (Ronald Zapata of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kew Gardens, and William H. Branigan of counsel; Lorrie A. Zinno on the memorandum), for respondent.
Paul Skip Laisure, New York, N.Y. (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kew Gardens, and William H. Branigan of counsel; Lorrie A. Zinno on the memorandum), for respondent.
MARK C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Barry Kron, J.), imposed December 15, 2016, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence is affirmed.
The defendant's purported waiver of his right to appeal was invalid (see People v. Bradshaw, 18 N.Y.3d 257, 267, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. Lopez, 6 N.Y.3d 248, 257, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; People v. DeSimone, 80 N.Y.2d 273, 283, 590 N.Y.S.2d 46, 604 N.E.2d 108 ; People v. Lopez, 156 A.D.3d 903, 903, 65 N.Y.S.3d 806 ). In light of the defendant's age, lack of experience with the criminal justice system, and limited education, the Supreme Court's limited colloquy did not ensure the defendant's understanding of the distinction between the right to appeal and the other rights that are automatically forfeited on a plea of guilty (see People v. Bradshaw, 18 N.Y.3d at 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 ; People v. DeMicheli, 129 A.D.3d 743, 10 N.Y.S.3d 330 ). Although there is a written waiver of the right to appeal signed by the defendant in the record, there is no mention of it in the transcript of the plea proceeding, and thus the court failed to ascertain on the record whether the defendant had read the waiver or whether he was aware of its contents (see People v. Iovino, 142 A.D.3d 561, 561–562, 36 N.Y.S.3d 216 ; People v. Brown, 122 A.D.3d 133, 145, 992 N.Y.S.2d 297 ). Thus, the waiver does not preclude review of the defendant's excessive sentence claim. However, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
DILLON, J.P., SGROI, HINDS–RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.